Nick Todorovic

The appellant suffered a catastrophic spinal cord injury in a cycling accident on a dirt path adjacent to Stone Church Road in Hamilton.

The City brought a summary judgment motion seeking dismissal under s. 44(8) of the Municipal Act, 2001, which exempts municipalities from liability for damages caused by construction, obstruction, or erection on untravelled portions of highways.

The motion judge dismissed the action, finding the accident occurred on an untravelled portion.

The Court of Appeal allowed the appeal, holding that the motion judge applied the wrong legal test.

The correct test requires determining whether the portion of highway was commonly and habitually used by the public for travel, not whether such use was reasonably foreseeable.

The court found the dirt path was commonly and regularly used by pedestrians and cyclists and therefore constituted a travelled portion of the highway, placing it outside the statutory exemption.

This ruling addresses requested changes to the jury charge in a medical negligence trial concerning the standard of care and the admissibility and weight of evidence regarding minority medical practice, usual practice, and the distinction between buttock numbness and saddle anaesthesia.

The court reviews the law on minority practice, the role of expert evidence, and the proper approach to weighing conflicting testimony, ultimately declining to make certain amendments requested by the defendant and clarifying the law for the jury.

This decision addresses the costs arising from a successful summary judgment motion brought by the City of Hamilton, which resulted in the dismissal of the plaintiff's action.

Following the parties' agreement on costs, the court ordered the plaintiff to pay the City of Hamilton an all-inclusive amount of $200,000 for the action and summary judgment motion.

The City of Hamilton moved for summary judgment to dismiss the plaintiff's claim for injuries sustained while cycling on an off-road path adjacent to Stone Church Road East.

The plaintiff, Otto Bello, suffered complete tetraplegia after riding into a culvert.

The City argued the claim was barred by s.44(8) of the Municipal Act, 2001, as the accident occurred on an untravelled portion of a highway.

The court found that clearly marked bicycle lanes were available, and the plaintiff chose an informal, untravelled path.

The court concluded that it was not reasonably foreseeable that cyclists would use the off-road path instead of the provided bicycle lanes, thus granting summary judgment to the City and dismissing the plaintiff's action.

This appeal arose from a civil jury trial concerning a collision between a motorist and a pedestrian, Jasmine Jarvis, who suffered severe brain injuries.

The jury at trial found the motorist not liable.

The appellants (plaintiffs) appealed, arguing the trial was unfair due to the admission of irrelevant and prejudicial bad character evidence (Ms. Jarvis fleeing a taxi without paying fare) and inflammatory remarks by respondent counsel.

The Court of Appeal found the taxi fare evidence inadmissible and its prejudicial impact outweighed its probative value.

The court also found respondent counsel's jury address inflammatory and the trial judge's instructions inadequate to cure the prejudice.

The appeal was allowed, the cross-appeal (on costs) was dismissed, and a new trial was ordered.

This costs endorsement arises from a pedestrian motor vehicle accident case where the jury found no negligence against the defendant driver, leading to the dismissal of the plaintiffs' action.

The defendants sought costs on a substantial indemnity basis, relying on a Rule 49 offer to settle.

The court found that Rule 49.10 did not apply as the plaintiff obtained no judgment.

The court exercised its discretion under the Courts of Justice Act and Rules of Civil Procedure to decline awarding costs against the principal plaintiff, Jasmine Jarvis, citing the tragic circumstances of her severe traumatic brain injury, her limited ability to pay, and procedural unfairness during the trial where irrelevant character evidence was improperly introduced.

No costs were awarded against the Family Law Act claimants (grandparents) due to their derivative claims and limited financial means.

The defendant in a motor vehicle accident action brought a motion to amend her statement of defence and to compel the plaintiff to disclose the settlement particulars of a companion commercial host action.

The plaintiff opposed the disclosure of the settlement details and the related amendment to the statement of defence.

The court dismissed the request for settlement particulars, finding them protected by settlement privilege and irrelevant to the assessment of damages in the current action.

The court also struck the proposed amendment requiring the plaintiff to account for the use of the settlement funds, as it was an improper attempt to obtain privileged information.

The plaintiffs brought a motion to determine the admissibility of a post-surgery photo of the plaintiff's head and a pre-operative CT scan for use in their opening address to the jury in a liability-only trial.

The defendants objected on grounds of relevance and prejudice.

Applying the four-part test from Whitford v. Swan, the court allowed the photo, finding it relevant to explain the plaintiff's lack of memory and not unduly prejudicial, provided it was proven at trial.

However, the CT scan was disallowed due to its narrative commentary and embellishments, which were deemed prejudicial and of low probative value given that damages were settled.

The parties settled damages in a motor vehicle accident where a pedestrian was struck.

The defendants brought a motion to vary the usual order of presentation at trial, arguing they bear the onus of disproving negligence under s. 193(1) of the Highway Traffic Act.

The court dismissed the motion, finding that the plaintiff still bears the burden of proving at least one issue on liability, such as that she was struck by the defendants' vehicle, and therefore there was no basis to depart from the usual order of presentation.

The defendant insurer brought a motion to compel the production of academic, psychoeducational, and treatment records of a plaintiff's sibling for a neuropsychological evaluation concerning causation, specifically genetic vulnerability.

The plaintiffs opposed, arguing the documents were irrelevant and the expert's need was not properly established.

The court granted the motion, finding the documents relevant and necessary for an informed expert opinion, distinguishing the plaintiffs' cited case, and noting the plaintiffs' own expert acknowledged potential genetic vulnerability.